Oil, Chem. & Atom. Wkrs. Int. U. v. American Maize Prod. Co., 73-1140.
| Decision Date | 28 January 1974 |
| Docket Number | No. 73-1140.,73-1140. |
| Citation | 492 F.2d 409 |
| Parties | OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, and Local 7-210, Oil, Chemical and Atomic Workers International Union, AFL-CIO, unincorporated labor organizations, Plaintiffs-Appellants, v. AMERICAN MAIZE PRODUCTS COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gilbert A. Cornfield, Chicago, Ill., for plaintiffs-appellants.
Daniel F. Kelly, Hammond, Ind., for defendant-appellee.
Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and SPRECHER, Circuit Judge.
The plaintiff-unions have appealed from the granting of defendant-employer's motion for summary judgment in an action which the unions brought under Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185,1 to compel the employer to arbitrate a grievance under the terms of a collective bargaining agreement.2
The collective bargaining agreement between the parties, effective August 1, 1970, set forth the terms and conditions of employment of 481 employees in the bargaining unit at the employer's Roby, Indiana, plant. The agreement provided a procedure for processing grievances (Article IX) and for submission to final and binding arbitration of all unsettled grievances (Article XII). Article XIII provided:
Article XXIII provided:
On May 22, 1972, the local union gave the following 60-day notice:
Subsequent to the notice, the parties entered into contract negotiations. No agreement having been reached, the union on July 29, 1972, served a 72-hour notice of intent to strike after midnight on August 1, 1972.3 Thereafter, some progress was made in the negotiations and the union hand delivered at 9:20 P. M. on July 31, 1972, a written withdrawal of the 72-hour notice to strike. At approximately 10:15 P.M., the employer advised the union that it could not unilaterally withdraw the 72-hour notice of strike and that the employer considered the union to be on strike as of 12:01 A. M. on August 1, 1972. On the night of July 31, 1972, when the employees came to work, some as early as 11:10 P.M., they found the gates of the plant closed and they were refused admittance to work.4
The union filed a grievance with the employer on August 8, 1972, stating that the employer had unlawfully locked out the employees in violation of the collective bargaining agreement. The employer refused to consider the grievance or to submit it to arbitration, whereupon, the unions' complaint was filed in the district court on August 31, 1972.
Both parties filed motions for summary judgment supported by affidavits, resulting in the district court's granting of the employer's motion and denying of the unions' motion. The district court held that regardless of whether the local union's May 22, 1972 notice was considered a notice to amend or a notice to terminate under Article XXIII, the no-strike-or-lockout provision in Article XIII would have terminated in accordance with Article XXIII and hence the shutdown of the plant resulted in a dispute under a terminated provision, which dispute the court held to be non-arbitrable.
The unions appealed and argued (1) that the district court lacked jurisdiction to determine whether the unions' grievance was arbitrable and (2) that the district court erred in concluding that the grievance was not arbitrable because "Article XIII no strike or lockout provision expired with the last shift on July 31, 1972." The essence of the unions' second argument was that even if lockouts were permissible under the contract upon a notice to amend (which the unions denied), the present dispute was arbitrable since the remainder of the contract continued in full force and effect and the grievance encompassed the right of the employer to hire temporary replacements during the lockout.5
In regard to the unions' first argument, it is well established that "whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties." Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L. Ed.2d 462 (1962).
In regard to the unions' second argument, we agree with the district court's conclusion but for a different reason.
The local union's notice of its offer to meet with the employer "for the purpose of negotiating a new contract or modifications to the present Agreement" was a notice to terminate under Article XXIII inasmuch as a notice "to amend certain sections or articles . . . only" would have at the very least required a designation of the sections or articl...
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